Court File and Parties

CITATION: R. v. Suissa, 2008 ONCA 860

DATE: 20081219

DOCKET: C48216-C48217

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Cronk JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

Liora Suissa and Reza Tehrani Appellants

Counsel: Vincenzo Rondinelli for the appellant, Suissa Gregory Lafontaine for the appellant, Tehrani Nadia E. Thomas for the respondent

Heard and orally released: December 9, 2008

On appeal from the order of Justice J.B. McMahon of the Superior Court of Justice, dated January 11, 2008, dismissing the appellants’ motion to quash the order committing them for trial, dated November 24, 2006.

ENDORSEMENT

[1] The appellants were committed for trial on several fraud related charges. They moved to quash their committals and the motion was dismissed. They have appealed from that dismissal.

[2] The appeals raise two different issues and we will address the appellants separately.

Liora Suissa

[3] Counsel for this appellant accepts that there was an evidentiary basis upon which she could be committed for trial. His argument may be summarized as follows:

• The reasons of the preliminary inquiry judge for committing the appellant were inadequate. The application judge correctly determined that those reasons were inadequate;
• The application judge erred in conducting his own review of the evidence adduced at the preliminary inquiry to determine whether it justified committal; and
• Having determined that the reasons for committal were inadequate, the application judge was required to remit the matter back to the preliminary inquiry judge for a determination on the issue of committal.

[4] We cannot accept this analysis. First, we do not accept that the inadequacy of reasons given for committal for trial is per se a jurisdictional error. Second, and assuming the Sheppard analysis applies, the application judge properly looked at the entirety of the record of the preliminary inquiry to determine whether the reasons were so inadequate as to constitute error. His review of the evidence satisfied him that a consideration of the reasons in the context of that evidence left no doubt as to the basis upon which the appellant was committed for trial. To the extent the application judge can be said to have engaged in a review of the sufficiency of the evidence to support the committal, he applied a test that was overly favourable to the appellant. The application judge should only have considered whether there was any basis in the evidence upon which it could be determined that the standard for committal had been met: see R. v. Tuske, [1978] O.J. No. 1253 (C.A.).

[5] Ms. Suissa’s appeal is dismissed.

Reza Tehrani

[6] Counsel for Mr. Tehrani argues that there was not a sufficient evidentiary basis to justify the committal for trial. He contends that the application judge made a significant error in respect of one piece of the evidence relied on by the Crown in support of the committal. We have reviewed that part of the evidence with counsel and are not at all satisfied that there was necessarily an error by the application judge. We will, however, accept the view of that evidence put forward by counsel. Having regard, however, to the rest of the evidence, fairly and fully summarized at paras. 39 and 40 of the respondent’s factum, we are satisfied that there was a basis upon which the committing justice could conclude that the evidence met the requisite test for a committal for trial. Mr. Tehrani’s appeal is dismissed.

“Doherty J.A.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”